-BAM (PC) Kunkel v. Dill et al, No. 1:2009cv00686 - Document 161 (E.D. Cal. 2012)

Court Description: ORDER ADOPTING 151 FINDINGS AND RECOMMENDATIONS and Granting in part and denying in part Defendants' 130 Motion for Summary Judgment signed by District Judge Lawrence J. O'Neill on 05/21/2012. (Flores, E)

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-BAM (PC) Kunkel v. Dill et al Doc. 161 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PATRICK KUNKEL, 10 11 12 13 CASE NO. 1:09-cv-00686-LJO-BAM PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN P AR T AN D D E N YING IN P AR T DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. N. DILL, et al., Defendants. (ECF Nos. 130, 139, 140, 151, 160) / 14 15 Plaintiff Patrick Kunkel (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the 17 first amended complaint, filed October 8, 2009, against Defendants Garcia, Mendoza, Araich, 18 Mackey, Robaina, Dileo, Dill, Pfeiffer, Ali, and Zamora for deliberate indifference in violation of 19 the Eighth Amendment. The matter was referred to a United States Magistrate Judge pursuant to 28 20 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On October 12, 2011, Defendants Garcia, Mendoza, Pfeiffer, and Zamora filed a motion for 22 summary judgment. Plaintiff filed an opposition on December 5, 2011, and Defendants filed a reply 23 on December 8, 2011. 24 recommendations recommending that Defendant’s Garcia, Mendoza, Pfeiffer, and Zamora’s motion 25 for summary judgment be granted in part and denied in part. The undersigned has considered 26 Plaintiff’s objections, filed on May 18, 2012. On March 7, 2012, the Magistrate Judge issued findings and 27 Plaintiff’s objections contains eighty nine pages of exhibits. To the extent that Plaintiff 28 attempts to raise new arguments or submit new evidence in his objection, the Court declines to 1 Dockets.Justia.com 1 exercise its discretion to consider Plaintiff’s evidence or arguments asserted for the first time in the 2 objection to the findings and recommendations. Espinosa -Matthews v. California, 432 F.3d 1021, 3 1026 n.4 (9th Cir. 2005); United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000). 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 5 de novo review of this case. Having carefully reviewed the entire file, the undersigned finds the 6 findings and recommendations to be supported by the record and by proper analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The findings and recommendations, filed March 7, 2012, is adopted in full; 9 2. Defendants’ motion for summary judgment, filed October 12, 2011, is GRANTED 10 IN PART AND DENIED IN PART as follows: 11 a. 12 Defendants Mendoza, Dill, Zamora (dental claims only), and Pfeiffer’s motion for summary judgment is GRANTED; 13 b. Defendant Garcia’s motion for summary judgment is DENIED for the claims 14 arising out of the treatment provided on February 1 and 8, 2007, and 15 GRANTED on all other claims against Defendant Garcia; 16 3. 17 IT IS SO ORDERED. 18 Dated: b9ed48 This action is referred back to the Magistrate for further proceedings. May 21, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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